Appellant convicted under Section 8(2) of the Abkari Act challenged his conviction due to lack of evidence regarding the tamper-proof custody of the seized illicit arrack sample and absence of seal analysis. Bench held prosecution failed to prove chain of custody. Appeal allowed; appellant acquitted.
Appellant acquitted of the offence alleged and set at liberty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 23RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944
CRL.A NO. 744 OF 2008
AGAINST THE JUDGMENTIN SC 964/2006 OF ADDITIONAL DISTRICT &
SESSIONS COURT, VADAKARA
APPELLANT/ACCUSED:
DASAN, S/O KELAN, AGED 39 YEARS,, EDACHANI VEETTIL, MANTHARATHUR AMSOM, VATAKARA TALUK BY ADV SRI.SUNNY MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA, EXCISE INSPECTOR, VADAKARA EXCISE RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
BY ADV
SMT. REKHA.S, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.744 of 2008
2
K.BABU, J.
Criminal Appeal No.744 of 2008
Dated this the 23rd day of November, 2022
JUDGMENT
Aggrieved by the judgment dated 28.03.2008, passed by the Additional District and Sessions Court, Vadakara in S.C.No.964/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh.
accused was found in possession of 5 litres of illicit arrack at Mantharathur amsom desom in violation of the provisions of the Abkari Act.
The case was committed to the Sessions Court, from where it was
Crl.A No.744 of 2008
3
made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence.
P9.
4
Crl.A No.744 of 2008
judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory.
5
Crl.A No.744 of 2008
specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court.
6
Crl.A No.744 of 2008
23.12.2003, through the Excise guard concerned. The custody of the sample during the period from 23.12.2003 to 02.01.2004 has not been explained by the prosecution. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus:
“Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”
establishing the tamper-proof despatch of the sample to the laboratory due to the non-examination of the officials who handled the sample.
7
Crl.A No.744 of 2008
Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related.
v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}.
Crl.A No.744 of 2008
8
matter cannot, therefore, be sustained. In the result, the
appellant/accused is acquitted of the offence alleged. He is set at liberty.
The appeal is allowed as above.
Sd/K.BABU, JUDGE
KAS
2 issues framed by the court
Whether the prosecution successfully established the tamper-proof chain of custody for the seized contraband sample sent to the Chemical Examiner's laboratory.
Whether the absence of the specimen seal description and examination of officials handling the sample vitiates the laboratory report under Section 8(2) of the Abkari Act.
Colour shows how this judgement treated each authority
Bhaskaran K. v. State of Kerala and anotherFollowed¶8
Bhaskaran K. v. State of Kerala and another (2020 KHC 5296)
Viswanadhan v. State of KeralaFollowed¶9
Viswanadhan v. State of Kerala [2016 (3) KHC 38]
Vijay Pandey v. State of U.PFollowed¶13
Vijay Pandey v. State of U.P (AIR 2019 SC 3569) · Who else cites this
State of Rajasthan v. Daulat RamFollowed¶14
State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] · Who else cites this
Sasidharan v. State of KeralaFollowed¶14
Sasidharan v. State of Kerala [2007 (1) KHC 275]
1 provisions across 1 enactments
DASAN
STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
